concurring in part and dissenting in part:
I agree with the majority that a prima facie case of discrimination has been shown, and that the certified class should contain all the women who were suspended or terminated during the relevant period as a result of Continental’s weight restrictions. In my view, however, Continental has already had ample opportunity to justify the policies, and has not done so. I therefore disagree with the majority’s refusal to consider the inadequate justifications offered by the employer and with its decision to remand for further proceedings on liability 'in this already protracted case. I also disagree with the majority’s approval of Stroud v. Delta Airlines, 544 F.2d 892 (5th Cir.), cert. denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110 (1977), which makes discrimination in segregated job classifications needlessly burdensome to prove.
During the period in question, Continental enforced, as a condition of employment, rigid weight requirements for flight attendants, all of whom were women. No such restrictions were enforced against any male employees, not even “directors of passenger service”, who, under a different title, were also serving passengers during flights. As a result of the weight requirements, the women were subjected to embarrassing monthly weigh-ins, many pursued debilitating diets, and those sought to be represented in this litigation were subjected to actual suspension and termination.
The weight requirements at issue had no relationship to a flight attendant’s physical ability to perform the job. There is no suggestion that the plaintiffs in this case performed less ably when they weighed 136 pounds as opposed to 135. The record reflects that no disciplinary action was ever taken against males during this period, even though several admitted that they consistently exceeded their maximum allowable weight. This is not a case where functionally similar grooming requirements were required of both men and women. Contrast, Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974).
Continental attempts to justify the weight restrictions for women, as well as its different treatment of the male DPSs, by asserting that the policy for the female flight attendants was a business judgment implementing the “image” which the airline wished to project and that male DPSs were exempted from such onerous restrictions because the men would eventually perform management rather than service functions. In my view, these explanations simply highlight the injustice which has been done to the women involved.
This case, which was instituted in 1973, is another, and particularly stale phase of the legal efforts to remedy the effects of discriminatory airline policies designed to insure that passengers were served by females who were “young, nubile, fashionably thin, and single.” Heenan, Fighting the “Fly-Me” Airlines, 3 Civil Liberties Rev. No. 5 at 48 (1976-77). See also Binder, Sex Discrimination in the Airline Industry: Title VII Flying High, 59 Cal.L.Rev. 1091 (1971). As early as 1968, when Title VII was still in its infancy, the EEOC condemned the airlines’ policies of mandatory retirement for stewardesses at age 32 or 35 as “part and parcel” of the policy of sex discrimination. Dodd v. American Airlines, Inc., CCH Empl.Prac.Dec. 16001 (EEOC 1968). Damages for those stewardesses who suffered on account of the “no-marriage” rule were upheld by this Circuit in Sangster v. United Airlines, 633 F.2d 864 (9th Cir. 1980), cert. denied, — U.S. -, 101 S.Ct. 1766, 68 L.Ed.2d 243 (1981). Within the past year, the practices within the airline industry toward women prompted judges of the fourth circuit to note that “the long history of sex discrimination by ... airlines generally certainly makes suspect the claim of business necessity for any employment practice resulting in a prima facie discrimination.” Burwell v. Eastern Airlines, Inc., 633 F.2d 361, 372 (4th Cir. 1980) (en banc), cert. denied, - U.S. -, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981) (Sprouse, C. J.).
No business necessity for the discriminatory policies involved here has been articu*1230lated. Being a female is not a bona fide occupational qualification for flight attendants. Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). “The primary function of an airline is to transport passengers safely from one point to another.” Id. at 388. The airline is thus in the business of providing safe transportation, not feminine sex appeal.1
In considering the nature of the discrimination involved, the majority holds that the restrictions had no adverse impact on women. Yet the effects of the policies were felt only by women, and it is simply illogical to conclude that the effects of suspension or termination were not adverse. The majority reaches that conclusion by adopting the view, espoused by the Fifth Circuit, that a job qualification imposed solely on women has no adverse impact so long as only women are in the affected job classification, and those who lose their jobs as a result of the policy are replaced by members of the same sex. Loper v. American Airlines, 582 F.2d 956 (5th Cir. 1978); EEOC v. Delta Airlines, Inc., 578 F.2d 115 (5th Cir. 1978); James v. Delta Airlines, 571 F.2d 1376 (5th Cir. 1978); Stroud v. Delta Airlines, Inc., 544 F.2d at 893. The result of the Fifth Circuit's approach is that employees in segregated job classifications can demonstrate unlawful discrimination only by showing that others similarly situated are not similarly treated. They must therefore overcome the kind of argument made by the employer in this case, i. e., that since all of the flight attendants were women, there were by definition no men similarly situated who were treated differently.
Fortunately the majority recognizes that the plaintiffs here were able to make at least a prima facie showing of disparate treatment, since there was a male classification, DPSs, performing similar duties. See also Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973), aff’d, 567 F.2d 429 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). Others who are in segregated jobs and are held to such a standard may not be so fortunate.
[I]n highly sex-segregated establishments, the few male employees often occupy totally dissimilar positions from the majority of female employees. The waitress who is fired when she gets too old to be considered alluring, for instance, is hard put to compare her treatment to that accorded the restaurant manager. ... [Ajttempts to expand the concept of disparate treatment in this fashion give the employer a further incentive to segregate its work force.
Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination, 21 B.C.L.Rev. 345, 399-400 (1980).
I would hold that whenever an employer applies a rule only to employees in a sex-segregated job classification and not to other employees, a prima facie case of discrimination has been shown. This would be true under either disparate treatment or disproportionate impact analysis. I thus agree with the Seventh Circuit’s decision in Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). The Court there invalidated the no-marriage rule for airline stewardesses, stating that when an occupational position is filled only by women, the employer may impose an additional qualification, not imposed upon male employees “if and only if that requirement reflects an inherent quality reasonably necessary to *1231satisfactory performance of the duties of stewardesses .... ” Id. at 1199. See also In re Consolidated Pretrial Proceedings in Airline Cases, 582 F.2d 1142, 1145 (7th Cir. 1978), cert. granted sub nom., TWA v. Zipes, - U.S. -, 101 S.Ct. 1511, 67 L.Ed. 813 (1981).2
The weight restrictions enforced here were not reasonably necessary to performance of the duties of flight attendants. The plaintiffs have demonstrated discrimination and I would remand this case with instructions that the district court enter judgment in favor of the plaintiffs on liability and proceed to a determination of the appropriate class and remedy.
. In Harriss v. Pan American World Airways, Inc., 637 F.2d 1297, 1302 (9th Cir. 1980), the majority recently held that an airline policy which required female flight attendants to stop work as soon as they learned they were pregnant was justified as a business necessity because occasional dizziness, nausea, and fainting in early pregnancy could interfere with passenger safety. Ironically, in this case the plaintiffs have contended that the promotion of thinness and crash dieting could undermine the attendants’ performance in an emergency, and this airline has taken the position that the primary responsibility of flight attendants is to please customers and has nothing to do with safety. The “business” justification for this policy is, in reality, the same stereotyping rejected in Diaz.
. See also, Dodd v. American Airlines, Inc., CCH Empl.Prac.Dec. ¶ 6001 (1968), which rejected an argument that since all stewardesses were female, any conditions of employment could not be sex discrimination. “The concept of discrimination based on sex does not require an actual disparity of treatment among male and female employees presently in the same job classification. It is sufficient that a company policy or rule is applied to a class of employees because of their sex, rather than because of the requirements of the job.” If all the holders of one job are of one sex and a particular condition of employment is applied to them, and not to other employees, the condition must be relevant to satisfactory job performance. See also Neal v. American Airlines, CCH Empl. Prac.Dec. fl 6002 (1968).